Labour Disputes
Texto da decisão
REF. FPSD-13279
Decision of the
Dispute Resolution Chamber
passed on 4 April 2024
regarding an employment-related dispute concerning
the player Facundo Jesús Fernández
COMPOSITION:
Lívia SILVA KÄGI (Brazil/Switzerland), Deputy Chairwoman
Stella MARIS JUNCOS (Argentina), member
Jorge GUTIÉRREZ (Costa Rica), member
CLAIMANT:
Facundo Jesús Fernández, Argentina
Represented by Ricardo Daniel Omar Frega Navía
RESPONDENT:
Pasa Irodotos FC, Greece
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REF. FPSD-13279
I. Facts of the case
1.
2.
The parties to the case are:
-
The Argentinian player, Facundo Jesús Fernández (hereinafter: the player or the
Claimant).
-
The Greek club, Pasa Irodotos FC (hereinafter: the club or the Respondent).
On 19 August 2022, the Claimant allegedly received from the Respondent the following
offer (hereinafter: the Offer) regarding a potential employment agreement:
“[the club] would like to sign the player Facundo Fernandez, (D.O.B 14/02/2000). Our
club is offering to the player 15.000 euros net for a contract started on 25.08.2022
and ends on 30.06.2023.
On top of the salary value the club will provide to the player accommodation, 2 meals
per day, use of car, return flight ticket from Argentina. The player will receive an
additional bonus of 2000 euros for every 10 goals/ assists he achieves.
Also if the player plays for 70% of the official games and the club finishes at the top 5
ranking list then he will receive an additional 2000 euros bonus.
Our offer is valid till 21.08.2022 and will be executed after the player passes
successfully the medical exams.
I am looking forward to hearing from you.”
3.
The Offer appears to be signed by the Claimant and the Respondent. However, the date
when the document was signed by the player cannot be established.
4.
The Offer was sent via the application WhatsApp as per the documentation available on
file, however, the persons to the said communication cannot be established.
5.
On 28 August 2022, the player mutually terminated his employment contract with his
former club, Atletico Tucuman.
6.
Seemingly on 1 November 2022, a person named Norma Emmolo, sent the club the
following e-mail (quoted verbatim). It is unclear under which capacity she was acting and
what is her connection to the player:
“Subject: Carta
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REF. FPSD-13279
Buenos Aires, September 1, 2022
I intimate to the fulfillment of the contract entered into between the parties dated
August 19, 2022 within 3 days of receipt of this.
As of August 19, 2022, the undersigned accepted the proposal and terminated his
professional contract in Argentina, making himself available to the institution to travel
to Greece. To date, the tickets have not been sent and communications have been cut
off, which is why I intend to comply with the agreement under penalty of initiating
before the FIFA dispute resolution chamber the claim for the full payment of the sums
committed. YOU ARE NOTIFIED AND PLACED WITHOUT FURTHER I GREETINGS YOU
CAREFULLY”
7.
The player confirmed to FIFA that he remained unemployed during the relevant period.
II. Proceedings before FIFA
8.
On 8 January 2024, the Claimant filed the claim at hand before FIFA.
9.
In his claim, the Claimant argued that the club sent an employment contract on 19 August
2022, as it included the salary, the duration, and other benefits. The Claimant further
argued that he accepted the Offer as (i) this can be retrieved in the WhatsApp
communications, (ii) he concluded a mutual termination with his former club and (iii) the
content of the correspondence of 1 November 2022.
10. By failing to respect the contract given rise to by the Offer, the Respondent is, according to
the Claimant, liable to pay him compensation for breach of contract without just cause.
11. In view of the foregoing, the Claimant requested payment of EUR 15,000 plus interests.
12. The Respondent, for its part, failed to submit its position to the claim.
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REF. FPSD-13279
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 8 January 2024 and submitted
for decision on 4 April 2024. Taking into account the wording of art. 34 of the March 2023
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
14. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b)
of the Regulations on the Status and Transfer of Players (February 2024 edition), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between an Argentinian
player and a Greek club.
15. Finally, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (February 2024 edition), and
considering that the present claim was lodged on 8 January 2024, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
16. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
17. The competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
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REF. FPSD-13279
considerations, it will refer only to the facts, arguments, and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
18. The foregoing having been established, the Chamber moved to the substance of the matter
and took note that the present claim is related to the existence of an employment contract
between the Claimant and the Respondent.
19. The Chamber took note that the Claimant considered that he had a valid and binding
employment contract and that he is entitled to compensation for breach of contract. On
the other hand, Respondent failed to present its reply to the claim within the deadline
granted by the FIFA General Secretariat. Therefore, the decision would be made only on
the basis of the argumentation and evidence filed by the Claimant, in line with article 14
par. 1 of the Procedural Rules.
20. In this context, the Chamber acknowledged that its task was to determine whether the
Offer allegedly concluded between the parties can be considered a valid and binding
employment contract.
21. In view of the foregoing, the Chamber started by recalling the well-established
jurisprudence which dictates that, in order for an employment contract to be considered
valid and binding, apart from the signature of both the employer and the employee, it
should contain the essentialia negotii of an employment contract, such as the parties to the
contract and their alleged representatives role, capacities and authority, the duration of
the employment relationship and the remuneration payable by the employer to the
employee.
22. After thoroughly analysing the documentation on file, the Chamber first turned its
attention to the factual framework involving the negotiations between the parties and,
specifically, to the correspondence exchanged in the context of the acceptance of the Offer.
In particular, the Chamber remarked that the evidence on file is insufficient to determine
that he accepted the Offer (and made such acceptance clear to the club). The DRC
underlined that the WhatsApp messages provided by the player only showed that the Offer
was sent to him by the club, but did not demonstrate that he accepted it and returned it
signed to the club.
23. The Chamber was of the opinion that in accordance with the scarce documentation
provided by the player, the latter failed to corroborate that he in fact accepted of the Offer
within the time limit established therein. Referring to art. 13 par. 5 of the Procedural Rules
and the principle of the burden of proof, the Chamber concluded that the Claimant did not
meet his burden of proof to demonstrate that a valid and binding employment contract
had been concluded by the parties.
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REF. FPSD-13279
24. What is more, the Chamber pointed to the fact that the player neither reported for duty
and/or demanded specific performance between 25 August 2022 and 1 November 2022 in
terms of the alleged contract concluded on 25 August 2022. In fact, no documentation
whatsoever was made available by the player to support his argument in this respect.
Moreover, the alleged letter sent on 1 November 2022 was sent by a third person, Ms
Norma Emmolo, for which no nexus can be found with the player. In addition, the e-mail in
question did not contain any reference to the player and the date of sending (1 November
2022) is not the same than the mentioned in the e-mail (1 September 2022), which means
that said document, had little probatory value, if any.
25. Based on the above, the Chamber decided to reject the claim of the Claimant due to its lack
of a contractual basis.
d. Costs
26. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
27. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
28. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-13279
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Facundo Jesús Fernández, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13279
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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